Shahida Khatoon & Ors v. Qaiyum Ali & Anr

RAJIV SAHAI ENDLAW, J. SEPTEMBER 28, 2018 Bs..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 28th September, 2018 + RSA 141/2018 & CM No.39672/2018 (for stay) SHAHIDA KHATOON & ORS .... Appellants Through: Mr. S.S. Jain and Ms. Veena, Advs. Versus QAIYUM ALI & ANR ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 28th August, 2018 in RCA No.44/2017 of the Court of Additional District Judge (ADJ)-01 (South-East)] allowing the First Appeal under Section 96 of the CPC preferred by the respondents against the judgment and decree [dated 20th March, 2017 in CS No.52013/2016 of the Court of Administrative Civil Judge (South-East)] on admissions allowing the claim of the appellants/plaintiffs insofar as for possession, in the suit for recovery of possession of immoveable property and mesne profits. Resultantly, the First Appellate Court has set aside the decree for possession on admissions in favour of the appellants/plaintiffs and since the appellants/plaintiffs had executed the decree, also directed the appellants/plaintiffs to restore possession of the property to the respondents/defendants and dismissed the suit. 2. This appeal came up first before this Court on 26th September, 2018, when finding that the only issue for consideration in the appeal was, whether Delhi Rent Control Act, 1958 (Rent Act) applies to the property subject matter of the suit or not and further finding that the counsel for the appellants/plaintiffs, during his arguments was shifting his stand, sometimes saying that Rent Act applies and another time saying that it does not, the hearing was adjourned to today to enable the counsel for the appellants/plaintiffs to, after studying the relevant Notifications, make up his mind, whether the Rent Act applies to the suit property or not. 3. Suffice it is to state that, if the Rent Act applies, as has been held by the First Appellate Court, the jurisdiction of the Civil Judge to pass a decree for recovery of possession of the property, is barred by Section 14(1) and Section 50 of the Rent Act. 4. The counsel for the appellants/plaintiffs has been heard and the record of the Suit Court and the First Appellate Court annexed to the memorandum of appeal perused. 5. The appellants/plaintiffs, on 13th January, 2016, instituted the suit from which this Regular Second Appeal arises, for recovery of possession of a portion at ground floor consisting of a room with attached toilet, bathroom, kitchen, in part of property No.F-39/3, Shaheen Bagh Part-II, Abul Fazal Enclave, Okhla, New Delhi-110025 and for recovery of arrears of rent and mesne profits and future mesne profits, pleading (i) that the appellants/plaintiffs were the owners of property No.F-39/3, Shaheen Bagh Part-II, Abul Fazal Enclave, Okhla, New Delhi-110025 comprising of ground, first and second floors; (ii) that the predecessor of the appellants/plaintiffs inducted the respondents/defendants, in the portion aforesaid of the property, as tenant, on 28th March, 2008, with effect from 1st April, 2008 at rent at Rs.1,800/- per month; (iii) that the respondents/defendants had failed to pay rent inspite of repeated demands; (iv) that a notice of termination of tenancy was got issued to the respondents/defendants; (v) that the appellants/plaintiffs earlier filed a petition under Section 14(1)(a), (c), (e), (f) & (g) of the Rent Act for eviction of the respondents/defendants from the tenancy premises; (vi) however the respondents/defendants, in their written statement to the said petition for eviction, took a plea that the Rent Act did not apply to the premises in the tenancy of the respondents/defendants; (vii) that the aforesaid plea of the respondents/defendants was accepted and the petition for eviction under the Rent Act filed by the appellants/plaintiffs rejected. Hence the suit. 6. The respondents/defendants contested the suit by filing a